Court opinions issued July 23, 2021

Leopold v. DOJ (D.D.C.) -- holding that an agency may satisfy foreseeable harm standard on a category-by-category basis, consistent with D.C. Circuit’s July 2, 2021 decision in Reporters Committee for Freedom of Press v. FBI, and that DOJ met its burden with respect to its Exemption 5 withholdings related to Special Counsel Robert Mueller’s investigation into the 2016 presidential election.

The New York Times v. DOJ (S.D.N.Y.) -- on remand from the Second Circuit, finding that DOJ properly reprocessed memoranda concerning CIA interrogations overseas by releasing additional information previously withheld pursuant to Exemption 5 and continuing to withhold certain names pursuant to Exemptions 1 and 3.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued July 22, 2021

The Wolk Law Firm v. NTSB (E.D. Pa.) -- determining that NTSB properly withheld certain records pertaining to aircraft accidents. including death scene photographs, autopsies, and medical case reviews, pursuant to Exemption 6 and Exemption 5’s deliberative process, attorney work-product, and attorney-client privileges.

Int’l Refugee Assistance Proj. v. USCIS (S.D.N.Y.) -- concluding that: (1) plaintiff’s lawsuit seeking access to refugee resettlement application was not moot, because: (a) disclosure of some records by non-party Department of State in response to plaintiff’s separate request did not settle whether USCIS conducted adequate search; (b) plaintiff adequately pleaded a policy-or-practice claim regarding USCIS’s alleged refusal to search a database for refugee resettlement documents; and (2) granting plaintiff’s partial summary judgment motion and finding that USCIS failed to search the relevant database for responsive agency records.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued July 21, 2021

Chelmowski v. United States (D.D.C.) -- finding that EPA performed adequate search for records pertaining to plaintiff and that it properly withheld certain records pertaining to Exemption 5’s deliberative process privilege and Exemption 6.

Chelmowski v. United States (D.D.C.) -- finding that: (1) FCC’s search fees and its demand for advanced payment were reasonable; (2) FCC and NARA performed adequate searches concerning plaintiff; and (3) government’s withholdings under Exemptions 4, 5, 6, and 7(E) were not directly challenged or undermined by plaintiff.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued July 20, 2021

Property of the People v. DOJ (D.D.C.) -- rejecting FBI’s claim that two files pertaining to Donald Trump are categorically exempt under Exemptions 7(D) and 7(E) solely because they are within an informant file.

Lopez-Pena v. DOJ (D.D.C.) -- granting government’s summary judgment motion because plaintiff conceded that his lawsuit originated from a FOIA request that he incorrectly mailed to the wrong federal agency.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued July 19, 2021

Advancement Proj. v. DHS (D.D.C.) -- concluding that: (1) with limited exceptions, ICE properly relied on Exemption 5’s deliberative process privilege to withhold records concerning visa sanctions, including briefing materials and communications about press strategy; and (2) ICE properly withheld two categories of records under Exemption 7(E), but it did not adequately spell out how disclosure of another category of records would reveal a law enforcement technique, procedure, or guideline.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: Gov't Defends Holding Info About Trump Name On Virus Checks

Gov't Defends Holding Info About Trump Name On Virus Checks

By Emlyn Cameron, Law360, July 19, 2021

The Treasury Department properly withheld information from ABC News after the organization asked for records on the decision to print former President Donald Trump's name on coronavirus relief payments sent by mail, the government said in a filing.

Read more here (subscription).

FOIA News: FBI publishes records about Whitey Bulger and Henry Aaron

FBI’s ‘Vault’ a repository of records on Capone to Einstein

By Joe Dwinnell, Boston Herald, July 19, 2021

“The Vault,” the FBI’s public records repository, is a who’s who of the famous to the infamous the agency has kept records on.

Once a person dies, their FBI files are accessible under the federal Freedom of Information Act — minus any agency redactions. The Herald did just that after Southie mobster James “Whitey” Bulger was killed in October 2018 inside a West Virginia prison.

The first batch of records was just posted to The Vault with the next installments expected soon. The FBI, however, keeps populating the page with new entries weekly from other FOIA requests.

Read more here.

Court opinions issued July 15, 2021

Wash. Post v. SBA (D.D.C.) -- finding that: (1) SBA failed to show that interim loan status information was properly withheld under Exemption 4, in no small part because the agency declined to submit declarations from any loan recipients; and (2) SBA properly relied on Exemption 4 to withhold DUNS numbers associated with individual borrowers.

Open Soc’y Justice Initiative v. DOD (S.D.N.Y.) -- ruling that the CIA properly relied on Exemptions 1 and 3 in refusing to confirm or deny existence of records concerning five pandemic-related topics, but that it did not meet its burden of proof with respect to sixteen other pandemic-related topics.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: TIGTA audits finds 16% error rate in IRS law enforcement redactions

The Treasury Inspector General for Tax Administration released an audit report on July 8, 2021, that reviewed the IRS’s compliance with FOIA in fiscal year 2020. A statistical sample of 73 cases involving Exemption 7 withholdings revealed a 16 percent error rate. Read the full audit report here.

Court opinion issued July 12, 2021

Reporters Comm. for Freedom Press v. FBI (D.D.C.) -- ruling that: (1) FBI properly relied on Exemption 7(E) to withhold various records concerning agency’s practice of impersonating journalists and documentary filmmakers, and noting that the foreseeable harm standard was inapplicable to that exemption; and (2) FBI failed to sufficiently explain how investigatory records concerning Cliven Bundy were protected by Exemption 7(A).

Summaries of all published opinions issued since April 2015 are available here.